Denise Ferreira Da Silva: Law, Raciality and Violence

NO-BODIES
Law, Raciality and Violence
Denise Ferreira da Silva*
When has it become a matter of fact — more than evidence, and yet
not a self-evident truth — that a (perhaps never to be known) number
of young males and females perish as subjects of law s preserving
violence? In this article, this question will guide a consideration of a
dimension of contemporary global existence that should become a
theme of the theorising of the political. It describes a political scene in
which the arms of the state — the police and the military — deploy
total violence as a regulating tactic. More specifically, it reads the
state s occupations of Rio de Janeiro s economically dispossessed
neighbourhoods, where drug traffickers compete to institute the law of
the land , as enactments of a different kind of founding contract, racial
violence signifies. In this account of the political (ethical-juridical)
scene, the dead bodies of black and brown teenagers count not as
casualties of urban wars, but as signifiers of the horizon of death. For
the racial subaltern s existence as an effect of the tools of raciality
(racial and cultural difference) unfolds in territories in which the state
acts only in the name of its own preservation.
We were terrified, all right …

What happened last night I don’t want
that to happen to nobody.
No one deserves that, you know,
not a human being.1
Where is that place where what should not ‘happen to nobody’ happens every day?
Why is it that, in so many places found in every corner of the global space, so many
human beings face that which ‘no one deserves’? What makes possible a mode of
existence that spreads beyond the juridical borders of any given state and the ethical
borders of every nation? In this article, I describe the context of emergence,
*
University of California, San Diego. My thanks to Joseph Pugliese, Maria
Giannacopoulos, Mark A Harris and my graduate students, Maile Arvin, Rashné Limki,
Kit Myers and Angela (Angie) Morrill, for their comments, questions and inspiration.
All have contributed greatly to what is good in this paper and are absolutely not guilty
for what is not.
1
This statement was made by the cousin of a 24-year-old Aboriginal man, Greg Harrison,
killed in Melbourne in May 2005 by ‘a group of Albanians’ who ‘yelled racial taunts’
and attacked them with baseball bats, according to his friends and relatives who
survived the attack: ‘Father of Two Killed in “Race Attack”’, Sunday Age, 15 May
2005.
FERREIRA DA SILVA: NO-BODIES 213
conditions of production, and effects of deployment of the political/symbolic tools

that design this particular ethical position. It is a position I locate when commenting
on Rio de Janeiro state military police’s and the Brazilian Army’s occupations of
the city of Rio de Janeiro’s black and brown economically dispossessed
neighbourhoods (favelas). Each occupation was followed or preceded by
confrontations between the military police and drug dealers that lasted from a few
hours to a couple of weeks. The law enforcement tactics in these occupations go
beyond ostensive patrolling of streets; they also include shooting from low-flying
helicopters, deployment of armoured cars, and use of automatic guns. While the
state government provides the basic social services — education, health, etc — to
these neighbourhoods, its presence is more evident in these military actions, which
have become the primary mode of management of the city’s economically
dispossessed black and brown territories.
During these occupations, favelas’ residents participate in scenes similar to the
war scenes unfolding in Iraq, Afghanistan, Palestine and other corners of the globe.
To be sure, the ‘kill on site/sight’ practice of Rio de Janeiro’s police does not make
one wonder whether Rio’s favelas are concentration camps or battlefields, but
rather prompts consideration of the question of what exactly is the difference
between them. What I do here is situate these occupations of Rio’s favelas in the
recent reconfiguration of the global political (ethical-juridical) stage that places the
state at the frontlines of racial subjugation. More specifically, this article introduces
a formulation of racial violence that captures how raciality immediately justifies the
state’s decision to kill certain persons — mostly (but not only) young men and
women of colour — in the name of self-preservation. Such killings do not unleash
an ethical crisis because these persons’ bodies and the territories they inhabit
always-already signify violence.
The itinerary that shows how raciality unravels the limits of the regulating
(administration or government) suits of the nation-state — in the collapsing of
justice that exposes the violent face of the state — includes three steps. My first
step is a description of the context of emergence and conditions of production of the
notion of difference appropriated in social scientific accounts of human existence.
This formulation of difference, I show, is comprehended in raciality, the onto-
epistemological arsenal constituted by the concepts of the racial and the cultural,
and their signifiers, those which produce persons (ethical-juridical) entities not
comprehended by universality, the chosen moral descriptor of post-Enlightenment
political configurations. The second step, the analysis of the effects of deployment
of the arsenal of raciality, begins with a discussion of how, in the global present, the
Brazilian state justifies the deployment of the security architecture that is becoming
the primary mode though which it engages its economically dispossessed black and
brown populations. My analysis of these occupations of Rio de Janeiro’s favelas
highlights how, because framed as necessary for the reappropriation of these
territories, they constitute a mode of racial subjugation, namely racial violence, in
which the state occupies the frontlines. Finally, the third step is not quite a
conclusion. It simply introduces the case for the consideration of racial violence as
a theme of political theorising. For what these occupations exemplify, I argue, is a
moment of the political marked by the dis/appearance of the distinction between the
law (as legality) and the state (as authority) that sustains the nation-state’s claims to
214 GRIFFITH LAW REVIEW (2009) VOL 18 NO 2
legitimacy. Before the black subject, signified in bodies and territories, the
separation of the state’s protective and punitive mandates crumbles because there
administration of justice (judgment) and law enforcement (punishment) resolve
in/to the state’s self-preserving force.
Necessitas
Necessity as a figuring of violence, a signifier of determination, preponderates in
the assemblages of the theatre of reason found in seventeenth century writings of
scientific and juridical universality. In both, reason signifies a universal power that
operates from without, and in both the mind (the rational thing) retains self-
determination, alone occupying the seat of decision (judgment) in knowledge and
political existence. That is, the mind alone determines (resolves, judges, adjudges)
the rules and motives through which universal reason governs, respectively, the
motions of things and actions of human beings. When discussing the notion of
power, John Locke rehearses the fundamental gesture that protects the mind in self-
determination, the displacement of exteriority, even before the unavoidable
elevation of necessity under the aegis of universal reason. Power, that which
ensures the beginning of action, he concedes, ‘includes relation’ — ‘a relation to
action or change’, to be more precise. Nevertheless, the unevenness of this relation
should be acknowledged because ‘sensible things’ and their ‘sensible qualities’
afford us just a notion of ‘passive power’2 — that is, reaction or affectability. With
the distinction between ‘active’ and ‘passive power’, he disavows the body to assert
that true power, determination — which is the ‘beginning of action’ — resides in
the mind alone. The mind, the sole exemplar of ‘active power’ (that which
commands, orders, rules), according to Locke, has two powers — namely ‘will and
understanding’: will affords the ability ‘to begin or forebear, continue or end
several actions of our minds, and motions of our bodies, barely by a thought or
preference of the mind ordering or as it were commanding, the doing or not doing
such or such a particular’; while understanding, perception, refers to the abilities to
know ‘ideas in our minds’.3
Early and later writings of determination, of necessity as a signifier of power,
assert the mind’s privilege of self-determination. Everywhere else, in the stage of
exteriority, the one occupied by the body and other external things, universal reason
governs as necessitas; in the shapes of force and order, it constrains, regulates or
limits. It acts as the exterior power (as law or form) that composes and destroys the
things of the universe. 4
2
Locke (1894), pp 311–12.
3
Locke (1894), pp 313–14.
4
Newton (1846), p lxviii: ‘rational mechanics [as] the science of motions resulting from
any forces whatsoever, and of forces required to produce any motion accurately
proposed and demonstrated’. That is, the universality of laws — of motion, gravitation,
etc — is only accessible to the mind because the later also participates in the attributes
of reason.
Decisive Power
Locating law and the state in necessitas, as framings of universal reason as violence
(force, power), seems to have been the main task before the early writers of
juridical universality. Law and the state consistently refigure determination, but
without undermining the rational thing’s (the mind’s) self-determination. Though
both referents of juridical-political power have the dual task of protecting and
punishing their subjects, the state (the sovereign) also has the obligation to preserve
itself. In his classical statement on the modern sovereign, Thomas Hobbes
acknowledges the artificial origin of the state, but insists that its creation results
from the rational thing’s recognition of its necessity. ‘The final cause, end, or
design of men (who naturally love liberty, and dominion over others) in the
introduction of that restraint upon the selves,’ he postulates, ‘is the foresight of their
own preservation … that is to say, of getting themselves out from that miserable
condition of war which is necessarily consequent, as hath been shown, to the
natural passions of men when there is no visible power to keep them in awe, and tie
them by fear of punishment to the performance of their covenants, and observation
of [the] Laws of Nature.’ 5
In the name of ‘peace and security’, according to the early writers of the
‘social contract’, the rational thing creates the political society, thus relinquishing
the liberty enjoyed in the ‘state of nature’. For Hobbes, the need for individual
protection and collective self-preservation defines the sovereign, ‘the essence of the
Commonwealth’, which he defines as ‘one person, of whose acts a great multitude,
by mutual covenants one with another, have made themselves every one the author,
to the end he may use the strength and means of them all as he shall think expedient
for their peace and common defence’.6 When they do institute this protective
political body, Locke would later postulate, the:
authori[se] the society … to make laws for him as the public good of the
society shall require, to the execution whereof his own assistance (as to his
own decrees) is due. And this puts men out of a state of Nature into that of a
commonwealth, by setting up a judge on earth with authority to determine all
the controversies and redress the injuries that may happen to any member of
the commonwealth, which judge is the legislative or magistrates appointed by
it.7
Exactly what does this ‘decisive power’ mean? This formal power, the
artificial authority, instituted in obedience of the divine mandate for self-
preservation, inhabits the moment of violence; it is a regulating, constraining and
punishing force. ‘Political power’, as Locke defines it, is ‘a right of making laws,
with penalties of death, and consequently all less penalties for the regulating and
preserving of property, and of employing the force of the community in the
5
Hobbes (1904), p 115.
6
Hobbes (1904), p 119.
7
Locke (1887), p 236.
execution of such laws, and in the defence of the commonwealth from foreign
injury, and all this only for the public good’.8
What both articulations of juridico-political power accomplish, I think, is to
write law and the state in violence — the mode through which reason operates in
necessity — when describing the ‘state of nature’ as the scene of violence. Both the
state and law comprehend violence, in the authority to check individuals’ threats to
one another and external threats to the collective (political society) and in the
authority to decide when to deploy its protective and punitive instruments.
Emerging from a rational decision, the law and the state also refigure self-
determination. For these are artefacts of the rational mind, the only existing thing
capable of comprehending necessity because it is the only one that knows that these
bodies that constraint/regulation would maintain, in political society, the sole rule
of ‘divine nature’, namely the preservation of life. 9
By recalling how juridical universality refigures self-preservation, I am not
raising anything that has not already been considered in legal and political
theorising. From Austin’s writing of law as commands backed by threats, through
Hart’s formalisation of law, and even Dworkin’s version of ‘law as integrity’,
constraint remains the defining attribute of the juridical, whether resulting from
rules or from the nature of adjudication.10 More recently, Peter Fitzpatrick highlights
this dual nature of the (legal) decision when, even as rewriting law in
‘ir/resolution’, he acknowledges that law operates precisely because of its internal
struggle against the founding originary violence. In Freud’s account of the social
order, Fitzpatrick argues: ‘Law finds its apotheosis in the determinant because it is
imperatively set against a savage chaos, yet in the violence of its determination law
remains also of the savage.’ 11 However, while the ‘savage’ (the signifier of
violence) provides a kind of ground, it is no longer the negative ‘other’ of modern
philosophers’ allegories of the state of nature or racial theories’ lesser (because
primitive, traditional, etc) ‘man’; it becomes the negative but interior ground on
which the force of law stands. For Fitzpatrick, law is also a thing of freedom and
necessity: on the one hand, as (collective) self-determination, law is that which
replaces the primal father, the sovereign commander; however, on the other hand,
law is that which replaces the chaos ensuing after the killing of the father when the
brothers assume the responsibility for their protection/preservation. In sum, self-
determination and self-preservation refigure the violence that constitutes the
unsettled core of law and the rigid armature of the state. And it is at work in
8
Locke (1887), p 192.
9
Locke (1887), pp 193–94: ‘The state of nature has a law of nature to govern it, which
obliges every one: and reason, which is that law, teaches all mankind, who will but
consult it, that being all equal and independent, no one ought to harm another in his life,
health, liberty, or possessions … Every one, as he is bound to preserve himself, and …
when his own preservation comes not in competition, ought he, as much as he can, to
preserve the rest of mankind, and may not, unless it be to do justice on an offender, take
away, or impair the life, or what tends to the preservation of the life, the liberty, health,
limb, or goods of another.’
10
See Austin (2000); Dworkin (1986); Hart (1994).
11
Fitzpatrick (2001), pp 3–4.
deployments of universality to ground any determination (decision or judgment)

regarding the ‘world of things’ or the ‘societies of men’.
Whence Difference?
When describing the rearrangement that composed the epistemological context of
the emergence of human sciences, Michel Foucault notes another Cartesian gift to
modern thought. In classical thought, he argues, Descartes’ formal representation of
comparison enables the assemblage of a ‘science of order’ and its two strategies:
measurement, in which a designated common unity allows for the attribution of
equality and inequality to the things of the world; and order, in which the
enumeration of differences permits the demarcation of identities and the design of
the classifying table. Much like calculating instituted physics as the scientific
account of the universal laws of motion, ordering deploys universality on to the
domain of the simple and complex observable things. This was possible, Foucault
argues, because of the designing of a language that resolved (in the mind) the
endless abundance of things into a finite number of categories. Here, scientific
reason governs through formalisation (and not regulation), which results from three
distinct strategies: mathesis (‘ordering of simple natures’), taxonomia (‘table of
visible differences’) and genesis (‘progressive series’). Because the other two are
comprehended by taxonomia, ‘qualitative mathesis’,12 he postulates, the table is ‘the
centre of knowledge in the seventeenth and eighteenth centuries’.13
What makes the table a figuration of exterior determination, an instance of
necessitas? Belonging to the moment of universal reason that Hegel decries as
‘dead reason’,14 the table refigures outer determination (exteriority/spatiality) when
it arranges the things of nature (minerals, plants and animals) in a hierarchical grid
organised by equality/inequality (mathesis), identities/difference (taxonomia) and
the series of events (genesis). Unlike the other two epistemological arrangements
Foucault describes, resemblance and the modern episteme, the classical table
apprehends ‘nature’ in the fixity of its abstract (formal) typologies. In the
scenography of formalisation, ‘nature’ remains in the moment of necessitas, where
reason determines (from without) everything that can and will happen to things.
The formulation of difference that emerged in this onto-epistemological context,
which encapsulates both equality/inequality and identity/difference, would guide
the conditions of production of knowledge of human existence in two distinct
epistemological configurations. First, in the classical natural history, it writes
human difference as an effect of body and territory without, because it is here fully
in the stage of exteriority, making any claims that these actualise or express the
essence (interior) of the human and other things. Instead, natural history represents
‘nature’ as a collection of beings, which can be distributed in the ‘table of identities
and difference’ because endowed with both measurable and classifiable (external)
traits and subjected to the disturbing series of geological events. Beginning with
observation, it deploys its formalising tools, ‘structure’ and ‘character’, which
12
Foucault (1994), p 74.
13
14
Hegel (1977).
resolve the visible manifold into a few abstract notions — that is, knowledge occurs
in the ordering of ‘nature’ according to a few abstract frames, namely form,
number, proportion and situation.15 ‘In Classical terms’, Foucault posits, ‘a
knowledge of empirical individuals can be acquired only from the continuous,
ordered, and universal tabulation of all possible difference’.16 In short, natural
history transformed the universe into a book, a text awaiting interpretation — once
again, a task only the knowing mind could perform. ‘It is the exclusive property of
man,’ Linneaus affirms, ‘to contemplate and to reason on the great book of nature.
She gradually unfolds herself to him.’ Nevertheless, while he argues that this mode
of knowing nature still depends on the ‘agency of the senses’, he sees the rational
thing as alone responsible for the interpretation of ‘nature’.17
Formalisation governed the classical epistemological field through the notion
of order. In this context, a notion of difference emerges that signifies vertical
(measurement) and horizontal (classification) in/equality. Through abstraction —
possible because of the a priori use of a common unity for measurement or the a
posteriori delimitation of a unit (a type or kind) with the identification of a common
characteristic — this ordering of the living world (human, plant and animal)
produced a formal mapping of the existing things without having to find an answer
to the question of how they come into being, other than the divine author and ruler’s
productive desire. With the table, a figuring of the stage of exteriority, scientific
reason makes its first incursion in the writing of human conditions. But it remains at
the level of observation, description and classification of territories, bodies and
modes of existence, which it used to designate human varieties. What it lacked —
that which would mark the emergence of the modern episteme — was the
privileging of interiority and temporality, the onto-epistemological presupposition
that would produce the body and territory as signifiers of the mind.
Though Montesquieu and Locke before him could refer to the ‘savage’ as the
‘other’ of the rational beings ruled by law, they could not rely on anything other
than the visible traits that populates the table of human difference. Put differently,
beyond territory and the diverse modes of existence found among them, there was
nothing else that could be called upon to write the difference between the ‘savage’
and the ‘European’. Why? For one thing, the rational thing’s uniqueness had been
grounded on the specificity of its mind; if this mental particularity, rationality, was
only an effect of territory, it could be bridged any time an ‘other of Europe’ would
leave its ‘original’ territory and move into a European space. As long as the
classification of the human world depended solely on the observable, and as long as
knowledge remained unconcerned with the interiority (the being) of things, the
signifiers of racial difference (bodily and geographical traits) refigured universal
reason as violence, the ordering (exterior) force, but they would not rewrite the
mind as an effect of necessity, as it is represented in the laws of natural philosophy
(classical physics) and the forms of natural history (classical biology).
From natural history, then, the nineteenth century sciences of man and society
inherited an account of human difference which comprehended modes of being
15
Foucault (1994), p 134.
16
Foucault (1994), p 144.
17
Quoted in Eze (1997), p 11.
human in the abstract (universal) units authorized by formalisation. To be sure, the

classical table’s formal apprehension of the body and territory as signifiers of
human difference would remain operative in the modern episteme, even if
bracketed by historicity, in phenomenology (the text in which body and territory
signify existence as an effect of self-representation), biology (the text in which the
body signifies existence as the effect of outer-determination) and sociology (the text
in which the territory signifies existence as the effect of collective self-
determination).
Before Legitimacy
How can this grounding of universality in necessitas, the epistemological figuring
of reason as violence, sustain an account of how raciality, a social scientific
signifier of human difference, fashions the juridical architectures and procedures of
the global present? Is it possible to do so without rehearsing raciality’s very
production of the racial subaltern subject as the sole agent of violence? For
instance, the notion of somatechnics suggests an approach to the political
significance of racial difference that targets the ‘capillary space of connection and
circulation between macropolitical structurations of power and micropolitical
technics of subjugation’.18 Following a parallel path, here I read racial and cultural
difference as a political signifiers, moments of deployment of power in the naming
of modes of being human — that is, in the very designing of the notion of humanity
now circulating in the global vocabulary. For this is necessary if the question
implicit in the opening quote is to be adequately and politically formulated; if one
wishes to comprehend how is it possible that that which should happen to nobody,
to ‘no human being’, has consistently delineated the existence of so many human
beings — those whose bodies signify something that seem to escape all that should
be comprehended by the Enlightenment notion of humanity, and its onto-
epistemological descriptors, namely universality and historicity.
In this section, I set up the argument that formalisation (a tool and effect of
scientific universality), the referent of the notion of difference refigured in the
arsenal of raciality (in signifiers of racial and cultural difference), produces the
racial subaltern subject as a mind that cannot occupy the seat of decision. That is, as
a political-symbolic toolbox, raciality institutes an ethico-juridical position that
belongs in the stage of exteriority, one which post-Enlightenment articulations of
universality and historicity fail to comprehend. With this claim, I am not arguing
that racial subaltern subjects figure outside the domain of rights, as they stand in the
letter of the law and the architectures and procedures of the administration justice.
Neither individually nor collectively fully excluded from the text of rights, today’s
racial subaltern subjects, virtually everywhere, can and do make demands for the
respect of their civil and human rights in the national and global halls of justice.
Nevertheless, I will show later, each and every one of these rights collapses when
the state claims that it deploys its instruments to total violence for self-preservation.
Does it mean that, for instance, each occupation of, and armed confrontation
in, Rio’s favelas constitutes an ipso facto suspension of law or an ad hoc
declaration of the state of emergency? Possibly. Whether or not state of emergency
18
Quoted in Pugliese and Stryker (2009), p 3.
is adequate to describe these occupations in the juridical language, there remains the
question of their political-symbolic effect — namely, of their ethical significance. A
consideration of legitimacy ensues whenever the state unleashes its ‘executive
power’ in (or on the verge of a) breach of the rights of the citizenry. For, as
Foucault argues, ‘the essential role of the theory of right is to establish the
legitimacy of power’ — which it does by dissolving ‘the element of domination in
power and to replace that domination, which has to be reduced or masked, with two
things: the legitimate rights of the sovereign on the one hand, and the legal
obligation to obey on the other’.19 Unmasking ‘domination’, unveiling the state’s
self-defining violence, I think, requires more than a critique of the notion of right
because, as I will discuss later, these occupations take place under the guise of a
worldwide demand for the expansion of (civil and human) rights. Much of what I
do in the analysis of these occupations is to unearth a modality of ‘disciplinary
coercion’, the one which, according to Foucault, has been concealed under the
grammar of legitimacy by ‘the establishment of public right articulated with
collective sovereignty’.20 Tackling the question of legitimacy, I think, opens up a
critical terrain which, though similar to Foucault’s studies of the mechanisms of
disciplinary and biopower, re-centres juridical-political power. For one thing, as my
reading shows, mapping the grounds for the state’s claims for the legitimacy of
favelas’ occupation exposes how raciality refigures the simultaneous workings of
disciplinary power and juridical-political power, thereby rendering claims for and
recognition of civil and human rights irrelevant.
With/out Legality
My discussion of legitimacy focuses on the ruling view that universality, as a
principle and ontological descriptor, governs the democratic polity because, I think,
it more productively speaks to the question of how certain human beings’ civil and
human rights so immediately disappear in the state’s decision to deploy its self-
preserving forces in the territories it is supposed to protect. Though his was not the
first, Max Weber’s account of universality as a modern ontological descriptor most
directly speaks to how it composes the ethical grounds of the state. Exemplifying
how legitimacy has been written to displace the moment of domination, Weber
deploys his typology of motives to write the law and the state, in their modern
variations, as effects of interior (cultural) determinants.21 When defining the
political organization, he postulates that ‘A “ruling organization” will be called
“political” insofar as its existence and order is continuously safeguarded within a
given territorial area by the threat and application of physical force’, but it will
only ‘be called a “state” insofar as its administrative staff successfully claim the
monopoly of the legitimate use of physical force in the enforcement of its order’.22
That is, while the state is a spatial (territorial) figure, its existence and continuation
19
20
21
Weber (1978), p 11: he defines motive as ‘a complex subjective meaning which seems
to the actor himself or the observer an adequate ground for the conduct in question’.
22
Weber (1978), p 54, emphasis in original.
depend on its ethical hold, namely legitimacy. In the case of the modern state, its
authority (domination) rests on the ‘belief in legality’, the ideas that:
(a) ‘expediency or value-rationality’ ground legal norms; and (b) ‘every body of
law’ is a ‘consistent system of abstract rules’ and ‘the administration of law is held
to consist in the application of these rules to particular cases’. Further, the
impersonal order (‘the law’) also comprehends ‘the typical person in authority, the
‘superior’; the member of the organization ‘obeys … only the “the law”’.23 In sum,
legality — now a principle — grounds claims for legitimacy based on rational
motives. Legal authority, according to Weber, rests on the view that ‘the
administration of law is held to consist in the application of these [abstract] rules to
particular interests which are specified in the order governing the organisation
within the limits laid down by legal precepts and following principles which are
capable of generalised formulation and are approved in the order governing the
group, or at least not disapproved by it’.24 What Weber does here — and it was later
taken upon by Unger — is rewrite law as legality, the principle — the interior
determinant of the social actions, relationships, organizations — that fashions
modern social political configurations, and hence the grounds for the state’s
legitimate use of violence within a given liberal territory.25
How could Locke’s instituted law, which he describes as an exterior
(objective) force, become the interior (even if formal) determinant of post-
Enlightenment European (political) particularity? The answer requires an account of
how universality morphed into the principle actualised and expressed in
Enlightenment European bodies and territories — or, to rephrase, how necessitas,
as articulated in scientific and juridical universality, as an outer-determining
(exterior) force, could become the interior ground for human action, the ruler of
morality. For that to be possible, universal reason had to undergo transformations
which allowed for the assertion of its sovereign ruling that did not undermine the
writing of the mind as a self-determined thing.
The articulation of the notion of the transcendental, as Foucault argues, is
key.26 This transformation took at least two moves. The first transformation,
Immanuel Kant’s response to Hume’s challenge of the possibility of knowing with
certainty, introduced the notion of the transcendental, which transformed
universality into an effect of the (rational) mental apparatus, namely the
understanding. When mapping the conditions of possibility of knowledge with
certainty, Kant introduces the notion of transcendental reason (pure/formal) as that
which provides the understanding with the tools — intuitions and categories — that
comprehend the objective and necessary forces at work in phenomena, the modes
through which the extent of things of the world is accessible to scientific
knowledge.27 Consistently, when bringing transcendental reason to the consideration
of human affairs — more specifically, morality — Kant re-enacts the protective
disavowal of exteriority to rewrite the mind’s intimacy with its formal (interior)
23
Weber (1978), pp 217–18.
24
Weber (1978), p 217.
25
Unger (1976).
26
Foucault (1994).
27
Kant (1990).
determinant. ‘There is therefore but one categorical imperative’, he postulates. ‘Act

only on that maxim whereby thou canst at the same time will that it should become
a universal law.’ 28 While in his formulation of the moral law, self-determination
remains a gift of reason, it now comes with the charge of transcendentality — that
is, without any experiential, empirical, exterior determinant: ‘If therefore I were
only a member of the world of understanding,’ Kant acknowledges, ‘then all my
actions would perfectly conform to the principle of autonomy of the pure will; if I
were only a part of the world of sense, they [my actions] would necessarily be
assumed to conform wholly to the natural law of desires and inclinations, in other
words, to the heteronomy of nature.’29 That is, here the moral subject ought to
emerge in mediated self-relation, in the presupposed identification of the rational
mind with its transcendental (formal) producer. Though the negation of exteriority
removes the possible violence (as a function of heteronomy, affectability) —
always there in the relation with the (exterior) object of desire, inclination, etc —
the Kantian determination of the moral subject (the productive symbolic gesture),
namely formalisation, is in itself violent. For the grounding of morality in the
formalising powers of the understanding, according to Herder, robs the human thing
of its most cherished capacity, namely self-production or self-development.30 Not
surprisingly, the Kantian solution remained an insufficient articulation of
universality as a moral guide. It was necessary to resolve the violence — here
signified as formal (interiorised) mediation — inherent to scientific articulations of
necessitas, namely calculation and formalisation.
The second transformation, G.F.W. Hegel’s rewriting of formal
(transcendental) reason as a living (self-developing) force, resolved necessitas into
a productive step in the self-revealing (self-representing) trajectory of human
consciousness. In Hegel’s version, universal reason becomes a transcendental self-
determined (interior/temporal) force that is realised in post-Enlightenment
European minds and territories. The writing of transcendental reason as spirit, the
self-producing, self-knowing, living force, transforms universality (and along with
it self-determination [freedom]) into an ontological descriptor, on which signifies
(because an effect) a particular spatial/temporal juncture, namely the moment of
transparency, where the revelation of transcendentality announces the end of the
temporal trajectory of spirit. In this moment, self-consciousness, the rational thing,
becomes the transparent I — for here, in the moment of ethical life, it learns of its
fundamental identity with spirit and everything that exists.31 When describing this
moment, Hegel characterises it as the one when the good (‘the substantial universal
of freedom’) and conscience (‘the purely abstract principle of determination’)
resolve in ‘absolute certainty’.32 Ethical life, then, ‘is the Idea of Freedom in that on
the one hand it is the good become alive — the good endowed in self-consciousness
with knowing and willing and actualised by self-conscious action — while on the
28
Kant (1956), p 88, emphasis in original.
29
Kant (1956), p 121.
30
Herder (2002).
31
Hegel (1977).
32
Hegel (1967), p 103.
other hand self-consciousness has in the ethical realm its absolute foundation and
the end which actuates in its effort. Thus ethical life is the concept of freedom
developed in the existing world and the nature of self-consciousness.’33 Everything
(the things of necessity and the things of freedom) is resolved here, in the scene of
engulfment, the self-actualising temporal trajectory of spirit: ‘ethical order is
freedom or the absolute will as what is objective, a circle of necessity whose
moments are the ethical powers which regulate the lives of individuals’.34
Freedom and universality (an abstract signifier of morality) can now be
reconciled in existence, because the stage of exteriority has become but spirit’s
exhibition hall. Outer-determination, the effect of exteriority/spatiality Kant
disavowed by writing moral law in mediated (formal) self-relation, is no longer a
threat because all that lies outside of self-consciousness is but an actualisation of a
(spatial/temporal) moment of spirit. When universality is interiorised, it becomes a
principle and ontological descriptor, The state, as Hegel describes it, becomes ‘the
actuality of the substantial will which it possesses in the particular self-
consciousness once that consciousness has been raised to consciousness of its
universality. This substantial unity is an absolute unmoved end in itself, in which
freedom comes into its supreme right. On the other hand, this final end has supreme
right against the individual, whose supreme duty is to be a member of the state.’35
Further, law (as the constitution) is particular only because it expresses the
‘character and development’ of the nation’s ‘self-consciousness’36 — that is, as
spirit continues its journey, there is nothing that could prevent the laws of a nation
from developing into expressions of universality.
Consistently, when addressing ‘the problem of sovereignty’, Hegel raises the
points that would become central in Weber’s formulations, as both the power and
authority of the state and of its ‘individual functionaries and agents’ rests on
universality — that is, ‘sovereignty depends on the fact that the particular functions
and powers of the state are not self-subsistent or firmly grounded either on their
own account or in the particular will of the individual functionaries, but have their
roots ultimately in the unit of the state as their single self’.37 What protects the state
from (subjective) particularity is these ungrounded conditions, which do not resolve
into the will of any individual ruler. Under the aegis of historicity, the mode of
becoming of spirit, universality, as a principle rules ethical life through and through
only because it describes the ethical-juridical totality, figured by the nation and the
state — in the late nineteenth century consolidated in the hybrid (ethical-juridical)
political entity, namely the nation-state — that marks the end of the trajectory of
spirit. When he rewrites universality as a marker of the end of spirit’s trajectory,
Hegel opens up the possibility for reformulating other renderings of universality.
By bringing transcendental reason to existence through the engulfment of the stage
of exteriority, Hegel’s accomplishment marks the onto-epistemological
33
Hegel (1967), p 105.
34
Hegel (1967), p 105.
35
Hegel (1967), pp 155–56.
36
Hegel (1967), p 179.
37
Hegel (1967), pp 179–80.
transformation that authorised scientific reason to venture into the sacred terrain of
freedom.
When describing the context of articulation of classical difference in post-
Enlightenment scientific writings of human existence,38 I argue that Hegel’s
resolution of spatiality into temporality, the engulfment of exteriority, opened up
the possibility for a knowledge project that approached the mind as an object of the
tools of necessitas without removing the rational things from the stage of (freedom)
interiority. What I do is describe the conditions of production of racial and cultural
difference as signifiers of human (moral and intellectual) difference in nineteenth
and twentieth century versions of the anthropological and sociological projects.
More specifically, I show how the arsenal of raciality apprehends the body and
territory — in the nineteenth century as ‘racial types’ or forms, as signifiers of two
fundamentally distinct kinds of minds: the transparent I, the post-Enlightenment
white/European, the ones who actualise/express the final actualization of Spirit, and
the affectable I, ‘the others of Europe’, those whose mind actualised/expressed the
effects of productive reason as comprehended by the productive tools (‘laws’ and
‘forms’) of the understanding. I will not repeat the whole argument here except to
say that my mapping of the analytics of raciality shows how, in scientific rewritings
of the human body and territory, self-determination remains the exclusive attribute
of the rational mind, which exists in the kingdom of freedom, where
transcendentality is realised, namely where reside the ethical-juridical things of
reason, modern subjects whose thoughts, actions and territories refigure
universality.
My mapping of raciality unearths how this political-symbolic arsenal that
refigures a power-effect of necessitas (formalisation) produces the ‘others of
Europe’ in affectability, as subjects which do not play in ethical life. There, the
others of Europe alone inhabit the realm of necessitas, thoroughly subjected to the
constraining/regulating power which produces and determines the parts and
movements of their bodies, thus responding for the inferior quality of their minds,
which is signified in modes of existence flourishing in their territories.
Nevertheless, because the self-determined thing cannot be so if it emerges in a
relationship — and the apparatuses of social scientific knowledge cannot but
produce types, categories, particulars that necessarily relate to each other as
instances of the productive nomos (the shape of necessitas when engulfed by spirit)
— the tools of raciality produce the others of Europe as always already vanishing,
either for the weakness of their affectable minds or when confronting the ‘active
power’ of the transparent I. Put differently, raciality produces both the subject of
ethical life, who the halls of law and forces of the state protect, and the subjects of
necessitas, the racial subaltern subjects whose bodies and territories, the global
present, have become places where the state deploys its forces of self-preservation.
The Security Turn

Anyone who lived in the city of Rio de Janeiro’s economically dispossessed areas
(favelas and housing projects), in the 1960s and 1970s grew up in spaces where the
38
Ferreira de Silva (2007).
forces of law enforcement — Rio de Janeiro state’s civil and military police — had
a more consistent presence than the state’s biopolitical apparatuses. Because the
armed resistance to the military dictatorship recruited primarily among the educated
middle class, none of us ever imagined that the state’s self-preserving forces (army,
air force or navy), even under a state of emergency, would be deployed in our
neighbourhoods. Not until recently, that is. Over the past few years, the Brazilian
army has been called to act as an agent of law enforcement on a number of
occasions. In early 2006, it happened because some time in early March or late in
the previous month, weapons were stolen from an army facility in Rio de Janeiro. A
few days later, without a declaration of emergency, the Brazilian army was
deployed in the city — about 1,600 troops occupied ten favelas in Rio de Janeiro.
After less than two weeks, the federal troops departed the city, with the stolen
weapons, leaving at least one person dead, publicly denigrated in the national press
but without any public calls from the left for a revolutionary response or from the
left or the right for the return of the rule of law.39
Under what authority could the self-preserving forces of the state
‘legitimately’ be deployed within national boundaries without an official
suspension of the rule of law, a public declaration of the state of emergency?
Whether a ‘global society’ (cosmopolitan or fragmented) or a new empire describes
the present global configuration, there is no question that, in the past 20 years or so,
states have been busy assembling the neoliberal juridical-economic program that
governs all of them. The directives of this ‘global contract’, or the global mandate,
found in the agreements setting up the multilateral bodies (such as the APEC,
Mercosur or the European Union), have instituted the global free marketplace:
economic reforms (de-regulamentation, elimination of trade barriers and stimulus to
private investment); inclusive democracy (measures that expand citizenship rights
through mechanisms that promote the inclusion of women, people of colour and
other socially excluded groups, and the protection of human rights); and security
architectures (such as Plan Colombia and the Merida Initiative, which includes
military [financial, personnel, weapons, and intelligence] aid).40
39
Major Brazilian newspapers covered this event. See, for instance, Folha de São Paulo’s
full coverage of the event at www.folha.uol.com.br/folha/especial/2006/exercitonorio.
40
The latest is the 2008 NAFTA Security Prosperity partnership, which has been
consolidated in the Merida Initiative: ‘The Letter of Agreement today makes available
$197 million dollars of the $400 million the U.S. Congress approved in fiscal year 2008
supplemental funds. More than $136 million is already being used in the fight against
crime through military cooperation and Economic Support Fund accounts, which also
form part of the Merida Initiative. The remainder of the $400 million consists of
$43 million which the U.S. Congress will release once we have met internal reporting
requirements, and $24 million to develop and administer the Initiative. This $400
million from the FY2008 supplemental spending bill represents the first installment of
the $1.4 billion in support the United States has committed to provide over the next
three years.’ http://americas.irc-online.org/am/4497. According to the Mexican
Ambassador to the United States, it show how: ‘Together, the governments of the
United States and Mexico will continue to fight the scourge of drugs and narco-
trafficking, but in order to succeed we will need the support of the people of both our
countries. I am confident that, together, we will succeed in bringing greater security and
The contradictions of neoliberal capitalism are both more elusive and more
complex than classical historical materialism could have anticipated. For instance,
when looked separately it is impossible to imagine how, for instance, working-class
black youth in Brazil might benefit from inclusive democracy (such as affirmative
action policies) if the economic reforms had not created a situation of precarious
(‘flexible-’, sub-, or un-) employment for their parents. Furthermore, the same
activists and intellectuals that attack economic reforms also celebrate the inclusive
democracy measures, such as recognition of indigenous land rights, the creation of
institutional means to address the effect of gender subjugation and recognition of
the rights of children. More importantly, because economic reforms have received
more scholarly and media attention, much of the reshaping of the state that has
taken place under the global mandate has been ignored. How the global mandate
functions as new configuration of the global political scene only becomes evident, I
think, if one looks simultaneously at the intersection of the three moments.
Unfortunately, I do not have space to develop this argument here. Let me just say
that it speaks directly to the fact that, in Latin America and the Caribbean and
elsewhere, the number of young men and women in the sphere of narco-trafficking
has grown exponentially over the past 20 years.
Perhaps the least exposed dimension of the neoliberal program is the fact that,
while the state everywhere has dramatically reduced their presence in the economy,
the assembling of the juridical architecture of free trade has also included measures
that allow it to play a large role in law enforcement. For almost eight years, the
architectures and procedures of national security have become an unescapable fact
in the United States. Built under the claim that it was necessary for protection from
foreign threats, this enormous apparatus — which is a good example of how the
state has not shrunk under the global mandate — has recently shifted its targets
from the phantasmagoric ‘terrorist’ toward the ubiquitous ‘undocumented
immigrant’, which it seeks along the country’s borders, in rural areas, and in large
and small cities. Following the security turn, the Brazilian government began
building a ‘homeland security’ apparatus of its own with the launching of the
National Program of Public Security with Citizenship (Programa National de
Segurança Pública com Cidadania, or PRONASCI), which includes 94 projects to
be managed in partnerships formed between the federal, state, city governments and
economically dispossessed communities. According to the Ministry of Justice, the
program is a unique ‘initiative in the confrontation with criminality in the country.
The project articulates security policies with social initiatives; [it] prioritises
prevention and seeks to reach the causes of violence, without relinquishing the
strategies necessary to ensure social order and public security.’ On the website, the
highlights (what the Ministry of Justice probably finds most attractive to the public)
of the project include two social actions: ‘Women of Peace’, designed to train
women to educate their communities about the ills of violence and ‘Protejo’
(Project for the Protection of Youth in Vulnerable Territories), which ‘focuses on
citizenship formation … through sports, cultural and educational activities’. Most of
the mentioned initiatives, which include the National Security Force (Força
prosperity to our nations’. See www.usembassy-

mexico.gov/eng/Ambassador/eA081203Jointdeclaration.html.
Nacional de Segurança Pública), an elite squad created in 2004, are directed to the
training and protection of police officers and other law enforcement agents. 41
What justifies this conflation of law enforcement (state-level policing) and
self-preserving (national security) forces? When commenting on actions by drug
dealers in January 2007, Brazil’s president, Luis Inacio (Lula) da Silva, deploys the
familiar trope of the ‘enemy within’ to justify this reconfiguring of the country’s
forces: ‘This … cannot be treated as common crime. This is terrorism and it should
be treated with a strong political gesture and the strong hand of the Brazilian State.’
How do the actions themselves, the killing by drug dealers of favelas’ residents,
authorise the elimination of the distinction between ‘crime’ and ‘terrorism’ — a
distinction that holds because the latter has been usually circumscribed to attacks
that target the state? While President Lula did not find it necessary to fill in the
blanks, to specify how the distinction between ‘crime’ and ‘terrorism’ was
breached, he mentions all-too-familiar sociological explanations for crime to
describe what he calls ‘terrorist actions’:
If there is disaggregation in the family, if the father and the mother don’t get
along, everything will be difficult … This violence results from accumulated
historical errors by the whole society, it should take responsibility and help
the state, local, and federal government to find a definitive solution.
The solution he introduces in this speech was the creation of a National

Security Force, a federal police force, the function of which is to help Rio de
Janeiro’s state police. Why? ‘Because,’ the Brazilian president states, ‘we have to
guarantee the right of free and honest men to leave their homes in the morning and
return in the evening. We cannot allow disturbance at home, disturbance in the
states. This is not a man’s, a party’s task. This is the task of the whole nation.’42
What he articulates is the moral mandate of the nation and the charge of the state to
protect ‘free and honest men’ from drug-related violence of the ‘criminals’, which
he attributes, as if a good sociologist, to the ‘disaggregation of the family’. The
problem, however, resides in how this distinction between ‘free and honest men’
and the ‘marginal’ already justifies the existence and the deployment of the forces
of law enforcement — the task of which is to protect citizens from one another.
What, then, explains the excess, the creation of an extra arm — the National
Security Force — when increasing the numbers of law enforcement officers would
be enough? This excess, I think — the deployment of the self-preserving forces of
the state in the favelas — is prefigured in sociological rendering of raciality, which
produces favelas — any community, neighbourhood or country, for that matter —
as affectable (pathological) territories, as moral regions ruled by necessitas. The
same field of studies that provides us with crime statistics, usually used in claims
for more state (juridico or biopolitical) presence, has also provided us an account of
racial subjugation that writes cultural (moral) difference as an expression and
41
See Ministério da Justiça, Brasil at www.mj. gov.br/data/ Pages/MJF4F53A
B1PTBRNN.htm.
42
‘Lula: Onda de Violência no Rio não é crime comun, é terrorismo’, O Globo, 1 January
2007.
producer of the ‘social ills’ or ‘social dislocations’ (‘crime’, ‘female-headed

households’, ‘unstable families’, ‘drugs’, ‘welfare dependence’, etc) found in these
territories. From Gunnar Myrdal’s use of Richard Wright’s ‘Bigger Thomas’ to
describe the ‘a-social’ social subject, he found ‘walking the streets unemployed;
standing around on the corners; or laughing, playing, and fighting in the joints and
poolrooms everywhere in the Negro slums of American cities’, and demonstrate ‘a
general recklessness about their own and others’ personal security and property,
which gives one a feeling that carelessness, asociality, and fear have reached their
zenith’.43 From mid-1940s sociological studies, through William Julius Wilson’s
neo-liberal trilogy,44 into the latest writings on criminology and ‘gang’ activity, this
‘marginal’ figure has been consistently written as a product of the social conditions
found in the places inhabited, as Kenneth Clark states, by ‘the pathologies of the
ghetto community [which] perpetuate themselves through cumulative ugliness,
deterioration and isolation and strengthen the Negro’s sense of worthlessness’.45 He
continues:
Not only is the pathology of the ghetto self-perpetuating, but one kind of
pathology breeds another. The child born in the ghetto is more likely to come
into a world of broken homes and illegitimacy; and this family and social
instability is conducive to delinquency, drug addiction, and criminal violence.
Neither instability nor crime can be controlled by police vigilance or by
reliance on the alleged deterring forces of legal punishment, for the
individual crimes are to be understood more as symptoms of the contagious
sickness of the community itself than as the result of inherent criminal or
deliberate viciousness.46
My point here is that the justification for the deployment of the forces of self-
preservation already resides in President Lula’s sociological truth, which represents
black and brown economically dispossessed urban regions, like Rio’s favelas, as
affectable territories, political (ethical-juridical) regions with/out law. Because they
are always already constructed as indigenous zones of violence, there the state must
necessarily show its self-preserving face. Hence President Lula’s in/distinction
between ‘crime’ and ‘terror’ is superseded by how raciality always already renders
in/significant his distinction between ‘free and honest men’ and ‘criminal/
43
Myrdal (1944), p 763.
44
I am referring here to Wilson’s (1978, 1987, and 1997) books, which have framed much
of the neo-conservative racial discourse and US racial policy for the past 25 years or so.
45
Clark (1965), p 12.
46
Clark (1965), p 81, my emphasis. Clark’s description is just an example of the basic
mid-twentieth century sociological rendering of raciality, in which cultural difference
becomes the privileged marker of human difference. Kelley (1997), pp 16–17: he agues,
that the social scientific literature on the ghetto produced in the 1960s and 1970s ‘not
only conflates behavior with culture, but when social scientists explore “expressive”
cultural forms or what has been called “popular culture” (such as language, music and
style), most reduce it to expressions of pathology, compensatory behavior or creative
“coping mechanisms” to deal with racism and poverty’. Nor has this argument
disappeared from the sociological literature.
terrorists’. Because the latter exist in the moral in/difference raciality inscribes in
these territories, anyone, everyone, any person, the (ethical-juridical) entity,
residing there does not figure the subject of ethical life, the self-determined persons
the law and the state protect; before these juridical structures, these racial subaltern
subjects are nobodies.
Black Flags, White Skulls

April 2008. My parents and I were following on TV and the newspapers the
unfolding of a weeklong occupation of the favela Vila Cruzeiro when news broke
about a confrontation in another neighbourhood, Cidade de Deus. A major
newspaper reported that 10 drug dealers were killed during the action, including the
leader. ‘Besides the dealers,’ the TV report informed us, ‘a 70-year old housewife
died [as the] victim of a stray bullet. Two other people were wounded. [The] cops
apprehended three assault weapons, two hand grenades, two and a half kilos of
cocaine, and two stolen motorcycles.’ The 70-year-old lady and her two also elderly
friends (who were wounded) were returning from the supermarket when they were
caught in the crossfire. ‘To avoid protests by the residents,’ the paper reported, the
police commander in the area ordered the occupation of Cidade de Deus.47 The
report also mentioned the weapons (including photos) and highlighted the fact that
some of them were ‘normally used by the armed forces and the military police
special forces’. And it included two pieces on the killed drug lord — one mentioned
his friendship with drug lords in other favelas and commented on the fact that he
‘had a good relationship with the community and avoided participation in
confrontations with the police’; the other was about his 11-year-old daughter, who
had been killed by a stray bullet during a confrontation between the police and the
dealers in Vila Cruzeiro the previous month. Besides the girl, we learned, another
five people, ‘among them two other children who played with her’, were killed
during the operation.
Located in a part of Rio the locals call ‘The Gaza Strip’, Vila Cruzeiro has
been occupied several times in the past few years. At the beginning of the April
2008 operation, the commander, Colonel Marcus Jardim, told the press that the
occupation was meant to ensure the state’s exercise of its biopolitical, public health
services tasks. ‘The first objective of the operation,’ he stated, ‘was to respond to
some people’s complaints of the difficulty to leave their homes [to be treated for
dengue fever] because of barriers and physical obstacles imposed by the narco-
trafficking.’ When questioned about the number of casualties, he said: ‘The PM
[military police] is the best remedy for dengue … it does not leave one mosquito on
its feet’, and stated that: ‘The PM is there to protect. If nine people were killed, it is
because it was a difficult and bloody battle. We need to respond in the same
proportion as the criminals. The action is legal, legitimate and the corporation has
to act in accordance with the society’s interests.’48 A week later, the police officers,
member of the elite squad known as BOPE (Batalhão de Operações Especiais),
47
‘Cerca de 150 policiais militares fazem operação contra o tráfico na Cidade de Deus’,
O Globo, 25 April 2008.
48
‘Policiais voltam a trocar tiros com traficantes na Vila Cruzeiro’ and ‘ONGs critical
Coronel que chamau a polícia de “inseticida social”’, O Globo, 16 April 2008.
‘spread a black flag with a skull’, the symbol of the squad, ‘on the highest point of
the hill [where the favela is situated]. The officers said that they were celebrating
the expulsion of the drug dealer … [they also said that] it is common to put up
flags’ — according to a lieutenant the paper quotes, it ‘is the symbol of total
occupation.’ A day later, ‘about 100 members of the elite squad remained on the top
of the hill. They occupied the local police stations.’ The black flag was then ‘placed
in the front of the [police] station’.49
If the police intervened to protect Vila Cruzeiro’s residents’ access to
‘citizenship’ public health services, why does the choreography of the occupation
only included visual and verbal signifiers of death? It seems to me that the objective
of these actions is a symbolic reappropriation of the territory but not necessarily the
return of its inhabitants to the protected region of legality. That 70-year-old
housewives and little girls — and many others hit by stray bullets or unarmed
favela residents who have been shot by the police — are killed is justifiable when
the killing happens in territories where ‘free and honest men and their families’ and
the ‘criminals and their families’ exist in/difference. They are unfortunate deaths,
but necessary because they are caused by the state’s legitimate deployment of its
self-preserving forces in the attempt to reappropriate symbolically the territory of
death — hence the black flag with prominent white skulls displayed in the
occupation apparatuses, including the caveirão, the armoured cars whose approach
empties the streets of the favelas.
That the assertion of the state’s authority renders such deployments of total
violence legitimate was conveyed by Rio de Janeiro state’s Governor Sergio Cabral
when he was asked about the killing of ‘working men’ during the occupation of
another favela:
For three years, there had not been an operation of this kind, with 350
officers. The marginal were not afraid of going to the streets. They were
acting during the day, with powerful weapons, stopping and killing people.
The state cannot accept this. This is not an ideological issue. It makes no
difference if I am called violent.50
What Governor Cabral suggests here is that, in these occupations, the state
intervenes not to protect its citizens but to preserve itself, to reassert its exclusive
right to deploy death in these territories. That this in/difference refigures an un-
resolvable moral (cultural) difference, because an effect of necessitas, signified in
black bodies and territories is exemplified in Governor Cabral’s defense of legal
abortion, a few months earlier:
The issue of interruption of pregnancy is related to public violence … If you

consider the number of children per mother in Lagoa Rodrigo de Freitas,
Tijuca, Méier e Copacabana [white/middle class neighbourhoods], you find a
49
‘Bope hasteia bandeira na Vila Cruzeiro’, O Globo, 21 April 2008.
50
‘Cabral defende aborto como forma de combate à violência no país’, G1, 24 October
2007.
Swedish pattern. Now, if you take Roçinha [favela]. The model is Zambia,
Gabon. This is a factory of criminals.51
No wonder that when the elite squad of state’s military police forces occupy this
‘factory of criminals’, death (the referent of Necessitas, the Roman goddess of
destiny) signifies reappropriation, where the black flag and its prominent skull
signify the end(s) of the state action.
My point is that the skull, a signifier of death, can only signify the state’s
deadly forces’ right to kill. Killing anyone alone signifies reappropriation of these
territories. That is, in these territories the state’s right to kill is always-already
legitimate. Not because it is unleashed for the protection of lives of favelas’
residents, there the state acts to preserve itself. During the territorial disputes
between the state and drug dealers, the (civil, social, human) rights of residents are
immediately suspended — the administration of justice collapses in law
enforcement — for law as a protective force does not embrace the residents of
Cidade de Deus, Vila Cruzeiro and other favelas. In the crossfire between the
police, the army and drug dealers, they inhabit a position that political theorising
has yet to bring under consideration. From that position, the one that gazes at the
horizon of death, it is impossible to distinguish between the police’s law-enforcing
and the drug dealers’ law-breaking actions. This in-difference refigures the
particular mode though which, in the global present, the state performs its role in
racial subjugation. For this reason, I think, the dead bodies of black and brown
teenagers count not as casualties of urban wars, unleashed because the state needs
to recuperate the inhabitants of these spaces back into its ethical fold. In this
affectable territory the state performs in/difference; for the favelas’ residents are no-
bodies as their existence unfolds before (in front of) ethical life, the ethical-juridical
territory the architectures and procedures of law enforcement are designed to
protect.
Naming this mode of operation of the state racial violence distinguishes it from
moments of deployment of the state’s violent arms, which either necessitate the
mechanisms of administration of justice or require that the state justify why these
are unnecessary through the naming of the enemy. The naming of the enemy, in
these instances, becomes unnecessary, because in these occupied territories,
raciality institutes an in/difference between state protective and self-preserving
tasks, which collapses the moment of administration of justice in/to law
enforcement, and the claim to the right to self-preservation (exemplified above by
President Lula’s and Governor Cabral’s statements) annuls demands for ethical
condemnation and legal redress.
Notes Towards a Critical Program

From the juridical point of view, the killing on site/on sight of favela residents —
regardless of whether or not they are involved in drug trafficking — could be read
as an instance of Kant’s jus necessitatis (right of necessity), which applies to a
51
‘Cabral defende aborto como forma de combate à violência no país’, O G1, 24 October
2007 and ‘Gobernador de Rio de Janeiro Promueve Legalizar el aborto … para diminuir
criminales’, Aciprensa, 26 October 2007.
subjectively determined act, the kind that is altogether beyond condemnation

(inculpable), but which is ‘only to be adjudged as exempt from punishment
(impunibile).52 We are familiar with jus necessitatis in criminal cases when self-
preservation (self-defence) is used to justify the killing of a person — as in the case
of the police officers who were acquitted of the killing of Amadou Diallo.53 My
argument in the preceding analysis, however, is that justification, as in the case of
these occupations of Rio’s economically dispossessed black and brown territories,
precedes the deployment of the state’s deadly forces. This is not, however, because
the state has now acquired some kind of subjective dimension, but because self-
preservation (as a duty and right) is already articulated the writings of the modern
sovereign. Neither a pre-existing nor a thus named enemy, I think, justifies
deployments of racial violence. For racial violence, as defined here, refers us fully
back to necessitas; the in/difference justifying these occupations is neither (god-)
given nor the effect of after the fact dehumanisation. This in/difference, which
marks an ethical position, is always-already signified in the bodies and territories of
the racial subaltern subject which social scientific instruments of racial truth write
as expressions and producers of affectable subjects, those of human beings whose
particularity/difference the formal (exterior/spatial) tools of racial knowledge
produce as subject of necessitas (outer-determination) and not life (self-
determination).
For this reason, I do not think that Giorgio Agamben’s rewriting of biopower
is an appropriate guide for the analysis of the mechanisms of racial subjugation at
work in the global present. While his formulation of biopower returns to the
‘problem of sovereignty’ without reinscribing interiority through a rearticulation of
legitimacy, his recuperation of the state as the absolute locus of power, by returning
total violence to the writing of the political, negates (articulates and disavows)
exteriority in a double strike. On the one hand, Agamben returns sovereignty to the
relationship with the subject’s naked body. For ‘bare life’, the one ‘who may be
killed and yet not sacrificed’ does no more than to demarcate the very borders of the
polis (an ethical-juridical space), where sovereignty emerges as absolute authority.54
Recalling Foucault’s description of royal punishment, with imagery of the ‘bare
life’ in the Nazi concentration camp, he disassociates his formulation of biopower
from Foucault’s mapping of the mechanisms of productive regulation through
which universal reason governs and produces (individual and the social) bodies. On
the other hand, he resolves the political back into the social (the political space of
the nation-state) where the sovereign exercises its legitimate (legal and moral)
authority. Nevertheless, when Agamben dismisses Schmitt’s friend/enemy pair,
which situates the political in the relationship between sovereigns (modern states),
he retrieves the political back from exteriority, which the social threatens to signify,
by writing it in potentiality. Because it names a self-productive exclusion, bare life
does not refer to the outside of the law, but to when it operates in its suspension:
‘An act is sovereign,’ Agamben explains, ‘when it realises itself by simply taking
52
Kant (2002), p 52.
53
Author (forthcoming).
54
Agamben (1995), p 8.
away its own potentiality not to be, letting itself be.’ 55 Self-determination and self-
preservation, the sovereign’s distinguishing attribute and highest duty, are
deployed, but now protected in potentiality, as self-relation, which takes place
between the sovereign that is and is not there — in what he calls the ‘zone of
indistinction’. For Agamben, the ban, the kind of relation the exception signifies, ‘is
the form of pure reference to something in general, which is to say, the simple
positing of a relation with the nonrelational’.56
Even if I concede that the occupations of Rio’s favelas may be read as ad hoc
declarations of the state of exception, the key difference between Agamben’s bare
life and my reading of racial violence, I think, resides in how he writes the ban as an
act of dehumanisation, the stripping off of legal and moral protection (the ‘ban’),
that which produces the bare life, the naked body before which sovereignty appears
as naked (total) violence. Beginning with the conception of the body, I read the
human body as inscribed by the arsenal of scientific reason, the instruments of
productive violence, always-already comprehended by the tools of raciality, namely
social scientific signifiers of human (racial and cultural) difference. For Agamben
deploys the body to signify life (as zo or ‘the simple fact of living common to all
living beings’):57 ‘If it is true that the law needs a body in order to be in force, and if
one can speak, in this sense of ‘law’s desire to have a body’, democracy responds to
this desire by compelling law to assumed the care of this body’.58 That is, the
political decision that distinguishes biopower, he argues, refers to ‘the value and
nonvalue of life’ as such — that is, a bare life without law and culture. This
difference is explicit in his analysis of the Holocaust, in his account of Hitler’s
decision on the non-value of Jews, homosexuals and others. Though Agamben
acknowledges that racial knowledge (nineteenth century science of man) provides
the Nazi regime with formulations which allow that the ‘care for life would
coincide with the fight against the enemy’,59 he argues that racism as a political
ideology marks the ‘paradox of Nazi biopolitics and the necessity by which it was
bound to submit life itself to an incessant political mobilization could not be
expressed better than by this transformation of natural heredity into a political
task’.60 Much like Foucault’s, his use of the Nazi model of racial power limits
readings of racial subjection as a political fact. For the reduction of racial
signification to ‘natural heredity’, of the body as a thing without history and without
science — which is consistent with the post-World War II move to ban the racial
from modern vocabulary — only renders raciality a political matter, following the
logic of exclusion, when racial difference is used to excuse personal and collective
prejudices and agendas.
What, then, comprehends racial violence — the fact that before racial subaltern
subjects the state exercises only its right to self-preservation? My excavations of
55
Agamben (1995), p 46.
56
Agamben (1995), p 29.
57
Agamben (1995), p 1.
58
Agamben (1995), p 125.
59
Agamben (1995), p 145.
60
Agamben (1995), p 148.
modern representation in an earlier project revealed that the deployment of the tools
of raciality has instituted globality as a modern onto-epistemological horizon.
Unlike historicity, the preferred ontological descriptor that writes modern subjects
as self-determined (interior/temporal) things, the political-symbolic arsenal that
confectioned globality institutes post-Enlightenment modern subjects as racial
things, universal entities that signify necessitas, thus establishing an unresolvable
distinction between the self-determined I and its affectable others. There I also
show how critical analyses of racial subjugation miss the more insidious effects of
raciality because they rely on the logic of exclusion, which assumes that
universality does encompass every mode of being human, that racial subjugation
only persists because modern social configurations have yet to realise (fully) its
universal claims. What the notion of racial violence does is to capture the workings
of the most insidious power effect of raciality, the logic of obliteration, which is
inscribed in the very production of racial subaltern subjects as the affectable I. Not
surprisingly, the neoliberal program’s embracing of the logic of exclusion, which is
to be corrected with inclusive democracy measures, renders this raciality’s power-
effect all the more apparent. Yet it consistently escapes our critical eyes because it
does not require the naming of racial difference, the specification of the many ways
in which the racial subaltern subject fails to express or actualise post-Enlightenment
principles, that which the logic exclusion has trained us to recognise as the
manifestation of racial power.
Neither is the camp an appropriate metaphor for the favela nor does the
refugee refigure the residents’ political (ethical-juridical) position. Racial violence,
unleashed in the in/difference that collapses administration of justice in/to law
enforcement, immediately legitimating the state’s deployment of its forces of self-
preservation, does not require stripping off signifiers of humanity. On the contrary,
this collapsing is already inscribed in raciality, which produces humanity, the self-
determined political (ethical-juridical) figure that thrives in ethical life, only
because it institutes it in a relationship — united/separated by the lines of the
Classical table — with another political figure (the affectable I) that stands before
the horizon of death.
For this reason, I think, neither Agamben’s ban nor Schmitt’s friend/enemy
pair are useful tools for the critique of racial subjugation. Raciality does its work
because it is a referent of necessitas, the ruler of the stage of exteriority; its
delineation of ethical life resists both postmodern deployments of historicity to
write the racial subaltern out of moral fixity and neoliberal measures of inclusive
democracy which promise (once again) to realise universality in all corners of the
globe. As such, it undermines political projects that — because grounded on the
transparency thesis, the ontological tale that announces ethical life — fail to
recognise raciality’s political/symbolic task, its effect of power, which is the very
writing of its boundaries. Put differently, because raciality prefigures the
impossibility of both gestures, the critique of racial subjugation should target the
very delineation of the territory of justice — that is, the ethical text sustaining our
demands for recognition and legal redress should become the object of radical
critique. When writing against renderings of nomos as a signifier of law, Carl
Schmitt provides a useful tool for such critique. His objective here is to recuperate
earlier articulations of the concept, in which nomos signifies the original ‘measure’,
land appropriation which ‘grounds law’. ‘In every case,’ he argues, ‘land-
appropriation, both internally and externally, is the primary legal title that underlie
all subsequent law.’ 61 Nomos, he argues, ‘is the immediate form in which the
political and social order of a people becomes spatially visible … the land-
appropriation as well as the concrete order contained in it and followed from it’;62 it
is the signifier of ‘order and orientation’. In this formulation of the origins of
political power, Schmitt removes the political authority from the Weberian
(interior) region of meanings (motives) and, along with it, dismisses the ‘problem of
legitimacy’ — the one which Foucault sees as intrinsic to the notion of right.
Defining nomos as ‘the full immediacy of a legal power not mediated by laws’ as
the ‘constitutive historical event — an act of legitimacy, whereby legality of mere
law is first made meaningful’,63 he inscribes sovereignty on to the territory, thereby
bracketing readings of law and the state as signifiers of interiority, as actualisations
of the rational thing’s self-determination — as Hegel writes both of them.
In Schmitt’s rendering of nomos, I find the possibility for a reading of
globality as a site of deployment of the modality of subjugation, racial violence, in
which juridical and disciplinary power merge. That is, it allows for an approach to
the political that comprehends instances of racial violence, such as occupations of
Rio’s favelas, as moments of political/symbolic ‘land-reappropriation’. For these
inscribe on to these territories — through the legitimate killing on site/sight of their
residents — a kind of ‘order and orientation’ (ethical life) that does not comprehend
the favelas and their residents. Legitimacy is always already given — in exteriority
— to these deployments of total violence because raciality renders the decision to
kill residents of Rio’s favelas just because it is deemed necessary for the
reinscription of the state’s authority. Because it functions, a priori, immediately
(always-already) in representation, the deployment of architectures and procedures
of security — occupations, military interventions, torture, summary executions, and
so on — need no further justification. For raciality assures that, everywhere and
anywhere, across the surface of the planet, that ever-threatening ‘other’ exists
because already named; as such, it is an endless threat because its necessary
difference consistently undermines the subject of ethical life’s arrogation of self-
determination.
Re fe re nc e s
Giorgio Agamben (1995) Homo Sacer, Stanford University Press.
John Austin (2000) The Province of Jurisprudence Determined, Prometheus Books.
Emmanuel Chukwudi Eze (1997) Race and the Enlightenment, Blackwell.
Kenneth B. Clark (1965) Dark Ghetto, Harper Torchbooks.
Ronald Dworkin (1986) Law’s Empire, Harvard University Press.
Denise Ferreira da Silva (2007) Towards a Global Idea of Race, University of Minnesota Press.
Peter Fitzpatrick (2001) Modernism and the Grounds of Law, Cambridge University Press.
61
Schmitt (2006), p 46.
62
Schmitt (2006), p 70.
63
Schmitt (2006), p 76.
Michel Foucault (1994) The Order of Things, Vintage Books.

Michel Foucault (2003) Society Must Be Defended, Picador
HLA Hart (1994) The Concept of Law, Oxford University Press.
GFW Hegel (1977) Phenomenology of Spirit, Oxford University Press.
Thomas Hobbes (1904) Leviathan, Cambridge University Press.
Immanuel Kant (1956) Groundwork of the Metaphysic of Morals, Harper & Row.
Immanuel Kant (1990) Critique of Pure Reason, Prometheus Books.
Immanuel Kant (2002) The Philosophy of Law, The Lawbook Exchange.
Robin Kelley (1997) Yo Mama’s Disfunktional, Beacon Press.
John Locke (1894) Essay Concerning Human Understanding, Clarendon Press.
John Locke (1887) Two Treatises on Civil Government, George Routledge & Sons.
Gunnar Myrdal (1944) An American Dilemma, Vol I, Pantheon.
Isaac Newton (1846) Principia, Daniel Agee.
Joseph Pugliese and Susan Stryker (2009) ‘The Somatechnics of Race and Whiteness’ 19 Social
Semiotics 1.
Carl Schmitt (2006) The Nomos of the Earth, Telos.
Roberto Mangabeira Unger (1976) Law in Modern Society, Free Press.
Johann Gottfried von Herder (2002) Philosophical Writings, Cambridge University Press.
Max Weber (1978) Economy and Society, University of California Press.
William J Wilson (1978) The Declining Significance of Race, University of Chicago Press.
William J Wilson (1987) The Truly Disadvantaged, University of Chicago Press.
William J Wilson (1997) When Work Disappears, Vintage.

Denise Ferreira Da Silva: Law, Raciality and Violence

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NO-BODIES

Law, Raciality and Violence

Denise Ferreira da Silva*

We were terrified, all right …

conditions of production, and effects of deployment of the political/symbolic tools

deployments of universality to ground any determination (decision or judgment)

human in the abstract (universal) units authorized by formalisation. To be sure, the

determinant. ‘There is therefore but one categorical imperative’, he postulates. ‘Act

The Security Turn

prosperity to our nations’. See www.usembassy-

The solution he introduces in this speech was the creation of a National

producer of the ‘social ills’ or ‘social dislocations’ (‘crime’, ‘female-headed

Black Flags, White Skulls

The issue of interruption of pregnancy is related to public violence … If you

Notes Towards a Critical Program

subjectively determined act, the kind that is altogether beyond condemnation

Michel Foucault (1994) The Order of Things, Vintage Books.

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